Gujarat High Court
Nanjibhai Jivabhai Umrigar vs Dahiben W/O Maganbhai Kadiyabhai on 2 July, 2024
NEUTRAL CITATION
C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12712 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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NANJIBHAI JIVABHAI UMRIGAR & ORS.
Versus
DAHIBEN W/O MAGANBHAI KADIYABHAI & ORS.
==============================================================
Appearance:
MR MEHUL S SHAH, SENIOR ADVOCATE WITH BHOOMI M
THAKORE(6237) for the Petitioner(s) No. 1,2,3
(MS SK VISHEN)(1204) for the Respondent(s) No. 10,11,12,13
DECEASED LITIGANT for the Respondent(s) No. 8
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR VIRAL K SALOT(3500)
for the Respondent(s) No. 1,2,3,4,5,6,7
MR PK JANI, SENIOR ADVOCATE WITH MR SHIVANG P JANI(8285) for the
Respondent(s) No. 8.1,8.2,8.3
MR VINAY B VISHEN(7425) for the Respondent(s) No. 10,11,12,13,9
==============================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/07/2024
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr.Mehul S. Shah assisted by learned advocate Ms.Bhoomi Thakore appearing for the Page 1 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined petitioners, learned Senior Advocate Mr.Percy Kavina assisted by learned advocate Mr.Viral Salot for respondent Nos.1 to 7, learned Senior Advocate Mr.P.K.Jani assisted by learned advocate Mr.Shivang Jani for respondent Nos.8.1 to 8.3 and learned advocate Mr.Vinay Vishen appearing for respondent Nos.9 to 13.
2. The instant petition under Article 227 of the Constitution of India is filed seeking following reliefs :
"(A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned order at Annexure-A dated 16.02.2008 passed by the Ld. Senior Civil Judge, Surat below Exh.46 in Special Civil Suit No.166 of 2008 and further be pleased to join petitioner as party respondents in the SCS No.166 of 2008 in the interest of justice;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to :
(i) Stay the implementation, execution and operation of impugned order at Annexure-A dated 16.02.2016 passed by the Ld. Senior Civil Judge, Surat below Exh.46 in Special Civil Suit No.166 of 2008;
(ii) Stay the further proceedings of the suit being Special Civil Suit No.166 of 2008 instituted before the Court of Ld. Senior Civil Judge, Surat in the interest of justice;"
3. The necessary facts leading to filing of the present petition could be stated as under.
Page 2 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined 3.1 The petitioners are in possession of land bearing old Survey No.352 (new Survey No.235) admeasuring 18,400 sq.mtrs. of village Vasu, Taluka Choryasi, District Surat. On 31.03.1994, the petitioners entered into "Satakhath"/Agreement to Sell with father of respondent and other family members. The petitioners paid Rs.59,25,000/- towards sale consideration. The respondent handed over possession to the petitioners on 31.03.1994. Thereafter, petitioners reminded the respondents to execute sale deed but the respondents avoided to do the same. Hence, the petitioners filed Special Civil Suit No.227 of 2013 for specific performance, however, the said suit came to be dismissed. The petitioners filed First Appeal No.1092 of 2018.
3.2 Special Civil Application No.166 of 2018 is filed by subsequent purchaser for specific relief of cancellation of sale deed executed between the parties of suit, for same parcel of land. Petitioner since holds possession of said parcel of land upon the agreement to sell, has unsuccessfully preferred application at Exhibit-46 under Order 1 Rule 10 of CPC to implead as party defendant in suit. Being aggrieved by the order passed by learned Additional Senior Civil Judge in Special Civil Suit No.166 of 2008, the present petition is filed.
4. Learned Senior Counsel Mr.Mehul Shah would submit that the learned Trial Court has committed serious error in rejecting the application at Exhibit-46 filed in Special Civil Suit No.166 of 2008 to implead the present petitioners as necessary and proper party into the suit. He would further submit that subject matter of the special civil suit filed between the respondents is land of Page 3 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined Survey No.352 (new Survey No.235) of Mouje Vesu admeasuring 18,400 sq.mtrs. old tenure land whereby the plaintiff of the suit, namely, Dahiben widow of Maganbhai Kaliyabhai etc. have filed suit for cancellation of the sale deed and other consequential relief. It is further submitted by learned Senior Counsel for the petitioners that one of the relief claimed in the suit was to obtain possession of the disputed land. Therefore, while deciding the dispute and legality of the registered sale deed executed between the parties, the other dispute is with regard to the possession of the disputed property which is lying with the petitioner.
5. Learned Senior Counsel Mr.Shah would further submit that the petitioners had filed Special Civil Suit No.227 of 2013 before the learned Civil Court, Surat claiming that in respect of the subject matter of the Special Civil Suit No.166 of 2008 i.e. land of Survey No.235, an agreement for sale was executed in 1994 in favour of the present petitioners. The petitioners had paid substantial amount towards the sale consideration. The possession of the land was given to the petitioners. He would further submit that even during the proceedings of the trial in Special Civil Suit No.227 of 2013, panchkyas was carried out by the order of the Court and it reflects that the petitioners are in possession of the disputed land of Survey No.235.
6. In the background of the above factual submission, learned Senior Counsel submits that the possession over the disputed land i.e. land of Survey No.235 is the core issue in both the suits. In Special Civil Suit No.227 of 2013, the petitioners have had arraigned all the parties of Special Civil Suit No.166 of 2008 Page 4 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined as party defendant. Unfortunately, the suit was rejected under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short 'CPC'). The first appeal is pending. But in the present suit, the heirs of Dahiben i.e. plaintiffs have not arrayed the present petitioners as party defendants, though petitioner is proper and necessary party and therefore an application under Order 1 Rule 10 of CPC has been moved to join them as party as in absence of present petitioners, no effective decree qua the relief of possession can be passed. But the learned Trial Court rejected the application on the hyper-technical ground and as such has committed serious error.
7. After referring to Order 1 Rule 10 of the CPC, learned Senior Counsel Mr.Shah would submit that Order 1 Rule 10(2) of CPC is an exception to the principle of dominus litis. He would further submit that principle of necessary and proper party gives discretion to the Court to see that whether for effective disposal of the suit and to reach to the just decision thereof, any other third party is required to be on the proceedings and if answer is in affirmative, the Court can join such third party either suo motu or upon the request of such third party.
8. Reiterating his earlier submissions, learned Senior Counsel Mr.Shah submits that possession of the land of Survey No.235 is one of the main relief in the Special Civil Suit No.166 of 2008. The petitioners claim that they are in possession. The petitioners' claim is prima facie supported by the panchkyas made during the proceedings of the special civil suit and if the issue of possession of the disputed land of Survey No.235 is Page 5 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined decided in absence of the petitioners, it would cause prejudice to the rights of the petitioners as well as no effective executable decree could be passed. Therefore, he would submit that the test of Order 1 Rule 10 (2) establish in the present case. The petitioners' right is involved in the dispute which is sought to be adjudicated by the respondents in Special Civil Suit No.227 of 2013 and therefore, the petitioners are necessary party in the suit.
9. In support of his submissions, learned Senior Counsel Mr.Shah has placed reliance upon following authorities :
(i) Sumtibai vs. Paras Finance Co. Mankanwar W/o. Parasmal Chordia - 2007 (10) SCC 82.
(ii) Baluram vs. P. Chellathangam and others -
2015 (13) SCC 579.
(iii) Thomson Press (India) Ltd. vs. Nanak Builders and Investors P. Ltd. and others -
2013 (5) SCC 397.
10. In view of the above, it is submitted to allow this petition and to quash and set aside the impugned order and to pass order to join the present petitioners as party defendant in the Special Civil Suit No.227 of 2013.
11. Per contra, learned Senior Counsels appearing for the other side while supporting the impugned order would submit that the present petitioners are neither necessary party nor proper party in the suit between the respondents. It is submitted that the subject matter of the Special Civil Suit No.227 of 2013 is Page 6 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined cancellation of the sale deed executed between the parties claiming it to be executed on misrepresentation and fraud. Thus, it is a dispute between two title holders of the land of Survey No.235. The petitioners were never title holder of the land of Survey No.235 and therefore, considering the nature of the suit, the petitioners could not be treated as necessary party nor proper party as claim of the petitioners is based upon agreement to sell.
12. It is further submitted that it is averment of the petitioners that they are in possession of the land of Survey No.235 but only on the averment one cannot establish that the petitioners are in possession of the land of Survey No.235 and have legal right to hold the possession of the land bearing Survey No.235. In view of that, the petitioners are neither necessary nor proper party to the suit and as such there is no reason to implead them as a party.
13. It is also submitted that the suit of the petitioners being Special Civil Suit No.166 of 2008 filed for specific performance in respect of land bearing Survey No.235 has been rejected by the learned Trial Court on the ground of limitation. Although first appeal is filed, no interim relief is operating in favour of the petitioners. So at this juncture, it could not be believed that the petitioners have any right over the disputed property based upon "Satakhat" as such dispute in Special Civil Suit No.227 of 2013 would prejudice the right of the petitioners. Therefore, it is submitted to dismiss the present petition.
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14. Following judgments are relied upon by the learned Senior Counsel for the respondents :
(i) Kasturi vs. Iyyamperumal and others - (2005) 6 SCC 733.
(ii) Gurmit Singh Bhatia vs. Kiran Kant Robinson and others - (2020) 13 SCC 773.
15. Let refer Rule 3 and Rule 10 of Order 1 of CPC which are the governing provisions as far as the dispute raised in this petition is concerned. They read as under :
"3. Who may be joined as defendants.--All persons may be joined in one suit as defendants where-- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise.
10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court Page 8 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.--
Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the 1 [Indian Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
16. Rule 3 gives power to the plaintiff to join all persons as defendants where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions alleged to exist against such persons regardless of jointly, severally or in the alternative if two separate suits were brought against such persons, any common question of law or fact arises. Thus, Rule 3 of Order 1 of CPC gives a complete prerogative to the plaintiff to choose the defendant against whom he wants to gain the relief. All the persons involved in same transaction or series of act, can be joined as defendant in the suit. Also if two suits are brought against such person they can be arraigned as party defendant.
17. As far as Sub-rule (1) of Rule 10 is concerned, it is in regard to suit instituted in name of wrong person as a plaintiff or where it is doubtful whether it has been instituted in the name Page 9 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined of the right plaintiff. Under the discretionary jurisdiction the Court can at any stage of the suit upon being satisfied about the bona fide mistake and feel that it is necessary for the determination of the real matter in dispute so to do, Court can substitute the plaintiff or add plaintiff upon the term as the Court may deem fit.
18. The principle of dominus litis is fully favouring the plaintiff as far as Rule 3 of Order 1 is concerned. It makes the plaintiff captain of the suit. However, it is slightly diluted and given discretion to the Court once we read sub-rule (1) of Rule 10. Sub-rule (2) of Rule 10 is putting complete discretion upon the Court. The provision starts with the phrase "the Court may at any stage of the proceedings". Thus, Sub-rule (2) of Rule 10 of Order 1 is exception to the principle of dominus litis. The Court if finds that presence of the person is necessary before the Court in order to enable the Court to effectively and completely adjudicate upon and set all the questions involved in the suit, the Court can join such party as plaintiff or defendant. The principle of necessary and proper party has been enshrined in Sub-rule (2) of Rule 10 of Order 1 of CPC.
19. The principle of dominus litis, the Latin term meaning 'master of suit', is fundamental concept in the civil procedure that grant the plaintiff significant control over the litigation process. This doctrine acknowledges the plaintiff's autonomy in selecting the party to be sued and relief sought. Hence, the plaintiff has primary right to choose the party to be impleaded in the suit. The plaintiff has significant control over the suit, Page 10 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined nevertheless the Court retains the power to add or remove party under Order 1 Rule 10 of CPC, feels that for effective and proper adjudication of the dispute before it the presence of the party is required. No one has an inherent right to be impleaded. The Court is expected to assess the interest and contribution of each party. In summary, the principle of dominus litis empowers the plaintiff to drive the litigation process and choose the defendant against whom he wishes the relief. In this plaintiff driven litigation process, the Court retains the discretionary power to intervene when necessary for just and comprehensive resolution to implead the party.
20. In 1992 (2) SCC 524 titled as Ramesh Hirachand Kundanmal vs. Muncipal Corporation of Greater Bombay and others, a classic interpretation of Order 1 Rule 10 has been made by Hon'ble Apex Court, it reads as under :
""It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought of relevant arguments to advance. The only reason which make it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that Page 11 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry,J. in Dollfus Mieg et Compagnie S.A. v. Bank of England (1950) 2 All E.R. 611, that the true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin,J. has stated:
The test is 'May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights."
21. Therefore, test is that if the legal right of any person is sought to be adjudicated in his absence, he is necessary party. In Vidhur Impex and Traders Pvt. Ltd. vs. Tosh Apartments Pvt . Ltd. and others - 2012 (8) SCC 384, the Hon'ble Apex Court had opportunity to consider many of its earlier judgments to set the law of Order 1 Rule 10 of CPC. Para 36 is relevant to be quoted hereunder :
"36. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the Suit.Page 12 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024
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2. A necessary party is the person who ought to be joined as party to the Suit and in whose absence an effective decree cannot be passed by the Court.
3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff.
5. In a Suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files Application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the Application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment."
22. In background of above settled provisions of law, let consider that whether present petitioners are necessary or proper party in the suit. Before we examine the issue on merits, we must recollect that Special Civil Suit No.166 of 2008 which is filed by the heirs of the Dahiben widow of Maganbhai Kariyabhai is essentially for cancellation of the sale deed executed inter se between the parties qua the disputed land. In this suit the plaintiff of the suit claimed that the sale deed qua subject land is executed on coercion, misrepresentation and fraud etc. So in nutshell, the parties are fighting for the title in the suit. The petitioners, in capacity of the plaintiffs preferred Special Civil Page 13 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined Suit No.227 of 2013 for the specific performance of the subject land claiming that the disputed property was sold to them by its erstwhile owner after accepting the sale consideration and handing over the possession. This suit came to be rejected under Order 7 Rule 11 of CPC. So the pettioner's claim has been closed at the first stage. Of course, the appeal is pending but no interim relief is operating in favour of the petitioners.
23. Learned Senior Counsel Mr.Shah argued the petition on key but sole ground that the petitioners are in possession of the disputed property. One of the issue in Special Civil Suit No.166 of 2008 is with regard to possession of the disputed property and therefore petitioners' presence in Special Civil Suit No.166 of 2008 is necessary and without they being joined as party, no proper and effective adjudication of the suit can be done. Learned Senior Counsel has also argued that, although plaintiff is a dominus litis, as well as he cannot be compelled to choose the defendant for taking the relief, yet Rule 10 of Order 1 being an exception permits the Court to add or join any person as a plaintiff or defendant provided that his presence felt necessary for proper and effective adjudication. As far as petitioners' possession over the disputed property is concerned, it is their self proclamation. None of the competent Court has given any substantive relief in favour of the petitioners holding that they are in legal possession of the disputed property. Rather rejection of Special Civil Suit No.227 of 2013 filed by the petitioners indicates that the learned Civil Court has not favoured the claim of the petitioners. The self proclamation of the petitioners about the possession over the disputed land cannot create any legal Page 14 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined right in favour of the petitioners which requires to be adjudicated during the proceedings of Special Civil Suit No.166 of 2008. In nutshell, self proclamation of the petitioners about possession over the disputed property having been not adjudicated by any competent Court in favour of the petitioners would not make them entitled to be a party in the Special Civil Suit No.166 of 2008. Rather it appears that it is an attempt on the part of the petitioners to once again enter into the dispute after they lost the battle as their suit being Special Civil Suit No.227 of 2013 has been rejected.
24. In view of above, the application moved by the petitioners has been rightly rejected by the learned Trial Court by giving very convincing and cogent reasons. The impugned order cannot be faulted for any reason.
25. Even otherwise the supervisory jurisdiction of the Court under Article 227 of the Constitution of India and its scope has been duly examined by Hon'ble Supreme Court in Garment Craft v. Prakash Chand Goel, 2022 SCC Online SC 29), by holding as under :
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is Page 15 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to." 2(2001) 8 SCC 97.
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence Page 16 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
26. Insofar as the judgment upon which learned Senior Counsel Mr.Shah relies upon is concerned, in case of Sumtibai (supra), it was a dispute with the person intending to implement as a party to the suit has some semblance to the title of the disputed property. The Hon'ble Supreme Court considered that the person intended to be impleaded as a party is not a busy body or interloper. The ratio laid down therein does not apply to the facts of the present case. In the judgment of the Baluram (supra), it was a case where suit for specific performance was filed against the trustees of the trust where beneficiary claimed to be impleaded in the suit. The Court believes that the Page 17 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024 NEUTRAL CITATION C/SCA/12712/2018 JUDGMENT DATED: 02/07/2024 undefined beneficiary is interested person in the outcome of the relief as it is alleged that the trust property was sold away at the thrown away price. The factual aspect of that case would not help to the petitioner's case. In the judgment of Thomson Press (India) Ltd. (supra), it was a case for specific performance where purchaser was pendente lite of the suit. The disputed property was sold to third party and third party was sought to be impleaded in the suit. The Hon'ble Supreme Court after ascertaining the principle of lis pendens available under Section 52 of the Transfer of Property Act, felt that under Order 1 Rule 10 of the CPC for effective adjudication, a person who now holds the title i.e. third party is necessary party. Again facts of that case do not help the petitioners.
27. In wake of the above reasons, I do not find any infirmity in the impugned order denying the relief of impleadment claimed by the petitioners under Order 1 Rule 10 of CPC. Hence, the petition stands rejected. Interim relief, if any, to discontinue. Notice is discharged.
28. After pronouncement of the judgment, learned Senior Counsel Mr.Shah submits to continue the interim relief. Vide order dated 21.08.2018, the interim relief was granted to the extent that learned Trial Court shall not pass any final order till next date. In view of the above findings, the proceedings of the suit cannot be put to halt. Thus, the request made by the learned Senior Counsel Mr.Shah is declined.
(J. C. DOSHI,J) GAURAV J THAKER Page 18 of 18 Downloaded on : Mon Jul 08 20:40:48 IST 2024